Text Messaging & Privacy

A fascinating decision out of the 9th Circuit last week in Quon v. Arch Wireless Operating Company, Inc. The case involved an Ontario, California police sergeant who text messaged a lot (25,000+ characters a month) on his Department pager. The lawsuit started after the Department launched an investigation into the sergeant, discovering that some of the messages were of a sexual nature and involved the sergeant's wife and others.

Of most interest to public safety practitioners, the Court found that while there is no expectation of privacy under the Fourth Amendment in the contents of "To/From" lines in e-mail and text messages, there is an expectation of privacy in the content of the messages. The Court found that the sergeant's expectation of privacy was not altered by City policy that explicitly stated that e-mail and internet use was not private and could be reviewed by the City, citing the "operational reality" that the Department would not review the text of messages unless employees exceeded the 25,000 monthly character limit and refused to pay overage charges. The Court also found the wireless company with which the City contracted, Arch Wireless, liable because under the Stored Communications Act it was an Electronic Communications Service, and as such, could only release messages with the consent of an addressee of the message.

Quon isn't a blanket holding that there's an expectation of privacy in electronic communications that bars governmental employers from reviewing e-mail, text messages, and internet use. Rather, it's best read as a reminder that actions speak louder than words in terms of assessing whether an expectation of privacy is reasonable. Had the lieutenant in the Ontario Police Department in charge of the pager program not told employees that their messages wouldn't be reviewed unless they refused to pay for overage charges, and had the City routinely reviewed the content of electronic communications, the result might well have been different.

The Supreme Court's brief dalliance in CBOCS West, Inc. with employee-friendly jurisprudence ended only days later on June 9 with the release of Engquist v. Oregon Department of Agriculture. In Engquist, the Court dealt with the "class of one" theory of discrimination law, described best in Village of Willowbrook v. Olech, that requires government to have at least a rational basis when it singles out a person or a group of people for unfavorable treatment. In Engquist, the Court held that the "class of one" theory has no applicability in the public employment context.

Engquist continues the Court's emerging view that public employees should have no more and no less rights than private employees, and that the status of the public employer as a governmental body is pretty much irrelevant to employment issues. That view coalesced most clearly in the holding in Garcetti v. Ceballos that public employees don't have any significant free speech rights. One can cavil at the rationale of the Court -- statements in Engquist like "public employees typically have a variety of protections from just the sort of personnel actions about which Engquist complains" ignores the fact that many public employees simply have no such protections -- but the fact is that the Court's approach to public employment rights is no doubt here to stay for many years. The inevitable result will be even a further turn by plaintiffs lawyers away from the federal courts in public employment cases, and more of a resort to state constitutional and statutory theories and collective bargaining rights.

Wither Garcia?

Perhaps the most interesting thing about CBOCS West, Inc. v. Humphries has little directly to do with the holding in the case that Section 1981 encompasses retaliation claims. Of more importance may be a return by the Court to the principles of stare decisis, principles that have often had little meaning in recent years. The Court’s holding in CBOCS West, Inc. turns far less on the merits of the issue than it does in a refusal by the Court to overturn the plainly analogously applicable Sullivan v. Little Hunting Park, Inc., 396 US 229 (1969) which held that Section 1982 included retaliation claims.

One can only wonder what this means for the continued vitality of Garcia v. San Antonio Metropolitan Transit Authority, which held there was nothing unconstitutional about the application of the FLSA to local governments. For years, commentators have hypothesized that Garcia was on its last legs, with the Court’s recent federalism decisions undercutting the theoretical underpinnings of Garcia. However, Garcia has now been on the books for 23 years, venerable enough status for the sort of stare decisis approach that resulted in CBOCS West, Inc.

Another fascinating aspect of CBOCS West, Inc. is Justice Thomas’ dissent, in which he writes “Retaliation is not discrimination based on race. When an individual is subjected to reprisal because he has complained about racial discrimination, the injury he suffers is not on account of his race; rather, it is the result of his conduct.” Whatever one thinks of Justice Thomas’ reading of Sullivan, this passage is interesting because it shows how far Justice Thomas now stands from a real-world understanding of discrimination, where retaliation is usually a more powerful tool to enforce discriminatory work environments than what Justice Thomas would call actual acts of discrimination. Link